Directing PI Claimants to Undergo Medical Treatment on the NHS – The Legal Position

On Wednesday of last week, Gordon Exall, the barrister-cum-author of Civil Litigation Brief, cautioned litigants against temptation to overlook s.2(4) of The Law Reform (Personal Injuries) Act 1948.[i]


The blog post in question was in direct response to a tweet, which had queried whether a tortfeasor is entitled to refuse to pay an injured claimant’s private medical treatment costs if the same care is available on the NHS and, if so, whether the general damages award would be inflated (on the assumption that NHS waiting times would be longer, thereby protracting any pain, suffering and loss of amenity experienced)?

More specifically, the tweet was in direct reference to proceedings where an insurer had directed that a personal injury claimant ‘should’ use the NHS.

Mr. Exall considered this demand to be ‘truly surprising’, on account of the fact that the insurer had seemingly ‘ignored’ the provisions of the 1984 Act, which essentially state that private medical treatment costs (and any associated travel expenses accrued) are recoverable, subject to the test of ‘reasonableness’.

However, it must be likely that private medical costs will be incurred (an exception to the general rule) – see Russell LJ, in Woodrup v Nicol [1993] PIQR Q104, at para Q114:

‘… if, on the balance of probabilities, a plaintiff is going to use private medicine in the future as a matter of choice, the defendant cannot contend that the claim should be disallowed because National Health Services are available. On the other hand, if, on the balance of probabilities, private facilities are not going to be used, for whatever reason, the plaintiff is not entitled to claim for an expense which he is not going to incur. That view, in my judgment, is amply borne out by authority [see Harris v Bright’s Asphalt Contractors Ltd [1953] 1 QB 617, where Slade J found that he ‘must have regard not to the probability, but to the possibility that some expense may be incurred’]’.

The Woodrup decision also determined that orders for partial payment of private medical treatment (where the remainder of the treatment is sought on the NHS) may be enforced, e.g. 50:50 split.

Ultimately, the current position on payment of private medical treatments costs is unlikely to change unless and until the Law Commission reverses its finding, in Report no. 262 (1999), that only a very small percentage of claimants use private care (at para 2.4).



[i] Gordon Exall, ‘CIVIL PROCEDURE BACK TO BASICS 78: NO DUTY ON AN INJURED CLAIMANT TO USE THE NATIONAL HEALTH SERVICE’ (10 June 2020 Civil Litigation Brief) <> accessed 10 June 2020.